MORE ON HURRICANE SANDY

During the NYSBA seminars on Sandy Relief, the following material was handed out:

"Are Landlords Really Responsible for Con-Ed’s Inability to Provide Power?

Q. Are you saying that whenever a rent regulated tenant loses power because of a widespread power outage that the tenant is entitled to a rent abatement?

A. It has nothing to do with rent regulation. It’s all about the warranty of habitability. As to a power outage, it depends on the duration. For a few minutes, there is no abatement and that is also probably true of a couple of hours. However, if the outage is for days, there would be an abatement.

We learn this from the case of Park West Management Corp. v. Mitchell, 47 NY2d 316, 418 NYS2d 310 in which New York’s highest court, the Court of Appeals wrote in 1979, "The scope of the warranty includes, of course, conditions caused by both latent and patent defects existing at the inception of and throughout the tenancy. However, as the statute places an unqualified obligation on the landlord to keep the premises habitable, conditions occasioned by ordinary deterioration, work stoppages by employees, acts of third parties or natural disaster are within the scope of the warranty as well (cf., Uniform Residential Landlord and Tenant Act, § 2.104). Inasmuch as the landlord is vested with the ultimate control and responsibility for the building, it is he who has a corresponding nondelegable and nonwaivable duty to maintain it. The obligation of the tenant to pay rent is dependent upon the landlord's satisfactory maintenance of the premises in habitable condition."

When the court wrote, "acts of third parties or natural disaster are within the scope of the warranty as well," it was making clear that it does not have to be the landlord’s fault or anyone’s fault that the apartment has become unlivable. The court is just saying that for whatever reason the apartment becomes unlivable, the tenant does not have to pay the rent during the unlivable period."